SMITH v. DHL EXPRESS

November 14, 2005.

DEBORAHA SMITH, Plaintiff,
v.
DHL EXPRESS (USA) INC., Defendant.

The opinion of the court was delivered by: THELTON HENDERSON, Senior District Judge

ORDER

This matter came before the Court on Monday, November 14, 2005,
on Petitioner's Petition to Vacate Arbitration Award and for
Rehearing. Having carefully considered the parties' written and
oral arguments, and the record herein, the Petition is DENIED and
this case is dismissed with prejudice.

A. BACKGROUND

Plaintiff, Deboraha Smith ("Smith"), originally filed an action
in San Mateo Superior Court against her employer, Airborne
Express, Inc. ("Airborne"). The parties subsequently entered into
a "Post-Dispute Agreement to Arbitrate." Pursuant to this
agreement, the parties agreed to have the Hon. Cecily Bond of
JAMS (a retired Sacramento County Superior Court judge) preside
over an arbitration of Plaintiff's claims. After conducting
discovery, the parties further agreed to submit a pre-arbitration
summary judgment motion to Judge Bond. On January 27, 2005, Judge Bond granted summary judgment for
Airborne. On May 9, 2005, Smith filed the instant Petition to
Vacate a Contractual Arbitration Award in San Francisco Superior
Court. Thereafter, the Defendant, now denominated as DHL Express
(USA), Inc. ("DHL"),*fn1 removed the action to this Court on
grounds of diversity jurisdiction. The case is currently before
the Court on Smith's petition to vacate Judge Bond's award in
favor of Airborne/DHL. Notably, Smith failed to file any reply
papers in this matter.

B. DISCUSSION

Smith's Petition to Vacate asserts that the Arbitrator's award
should be vacated under California Code of Civil Procedure §
1286.2. This provision narrowly limits parties to four potential
grounds for attacking an arbitration award, and unless one of
these four grounds is established, the award is immune from
judicial review. Moncharsh v. Heily & Blase, 3 Cal. 4th 1,
12-1, 27-28 (1992). Smith invokes the fourth ground  that the
arbitrator "refused to hear or consider evidence material to the
controversy." Calif. Code of Civil Procedure § 1286.2(e).

The record, however, plainly fails to support this assertion.
First, Judge Bond's ruling itself states that she has "read and
considered all points and authorities, declarations and other
materials submitted in support and in opposition to said Motion"
and has "considered the arguments of counsel." See McInerney
Decl., Exh. I at 1. Smith does not dispute that Judge Bond heard
oral argument from the parties for over one hour by telephone.

Second, Smith fails to establish that Judge Bond refused to
hear any specific item of evidence. Smith argues at length that
Judge Bond "obviously disregarded" Smith's "extensive and
exhaustive deposition testimony and her Declaration in opposition
to said Motion for Summary Judgment" because, in Smith's view,
this evidence warranted a different result in her underlying
case. See e.g., Smith's Mem. in Support of Petition to Vacate Arbitration Award at 7-10. The record, however, is bereft
of any basis for finding that Judge Bond refused to hear any
evidence material to the controversy. Rather, Judge Smith's
ruling indicates that she considered the evidence but rejected
Smith's position on the merits. Needless to say, rejecting
evidence is not the same as refusing to consider it. While Smith
may vigorously disagree with Judge Bond's decision, this is
plainly not grounds for reviewing or vacating the award. Morris
v. Zuckerman, 69 Cal. 2d 686, 691 (1968) ("`[n]either the merits
of the controversy . . . nor the sufficiency of the evidence to
support the arbitrator's award are matters for judicial review").

Petitioner also argues that Judge Bond erroneously concluded
that Smith conceded her tenth cause of action in her underlying
complaint. Even if this were true, which seems highly unlikely
based on the record before the Court, it would not be grounds for
vacating the award since this Court does not have jurisdiction to
review the substance of the award for error. Moncharsh,
3 Cal. 4th at 11; Morris, 69 Cal. 2d at 691.

In sum, Smith's petition is essentially an attempt to reargue
the merits of the underlying case. As such, Smith has failed to
establish any basis for vacating the Arbitrator's award under
California Civil Code § 1286.2. Accordingly, the petition must
denied.

C. CONCLUSION

For the reasons set forth above, and good cause appearing, it
is HEREBY ORDERED that Smith's Petition to Vacate Arbitration
Award and for Rehearing is DENIED, and this case is dismissed
with prejudice.

IT IS SO ORDERED.

20051114 ...

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